Sh. Lalpianfela vs The State Of Mizoram & Anr.

(Rajesh Mazumdar, J)

Heard Mr. Lalfakzuala, learned Amicus Curiae for the appellant. Also heard Ms. Linda L. Fambawl, learned PP for the State and Mr. Jordan Rohmingthanga, learned Legal Aid Counsel for respondent No. 2.

The appellant has preferred this Criminal Appeal assailing the Judgment & Order dated 25.11.2024 passed by the learned Special Judge, POCSO Act, Aizawl Judicial District, whereby the appellant had been convicted under Section 6 of the POCSO Act, 2012 and Section 376(3) of the IPC. The appellant had been sentenced to undergo R.I for a period of 20 years and to pay a fine of Rs. 30,000/- for his conviction under Section 6 of the POCSO Act and had been sentenced to undergo R.I for a period of 20 years with a fine of Rs. 30,000/- for his conviction under Section 376(3) of the IPC. The sentences were directed to run concurrently.

The investigation leading to the conviction of the appellant herein was put into motion by an FIR lodged by a Counselor serving in the Hermon Children's Home on 26.09.2023, by which the informant reported that the minor victim had been raped by her own brother on 28.08.2023 at around 6:00 AM at Zion Veng, when there was no one else at home. It was further reported that on 30.09.2023, the accused had again committed sexual assault on the victim at around 4:00 PM. The report further divulged that there was a delay in lodging the FIR since the information had been received belatedly from the Child Helpline and the Child Welfare Committee. It was reported that the parents of the victim were already divorced and the whereabouts of her mother were not known. It was also reported that the father had remarried and lived with his new wife and children.

On the basis of the FIR, All Women Police Station Case No. 38/2023 was registered under Section 6 of the POCSO Act read with Section 376(AB) of the IPC and the investigation was carried out, which resulted in Charge-sheet No. 45/2023 dated 13.11.2023. The appellant herein had been arrested on 26.09.2023 and had not been granted bail during the period of investigation.

On the Charge-sheet being submitted by the Investigating Authority, the learned Trial Court framed the following charge, namely:

The case was taken up for trial by the learned Special Judge, POCSO Act, Aizawl in S.C. No. 114/2023 A/o Crl.Tr.No. 2080/2023. The prosecution led eight witnesses, although nine were named in the Charge-sheet and nine documents were exhibited during the trial by the prosecution. On completion of the prosecution evidence, the accused was examined under Section 313 of the Cr.PC, and he had stated that he would like to adduce defense evidence. However, as recorded in the Order dated 09.09.2024 by the learned Trial Court, the defense submitted that defense evidence would not be adduced and as such, the defense was closed. It is also relevant to note here that the Prosecution Witness No. 5 proposed by the prosecution, namely the JMFC-2, Aizawl, i.e., the learned Magistrate, who had recorded the statement of the victim under provisions of Section 164 of the Cr.PC had been dropped from the list of witnesses on the consent of both the parties, who had agreed to assume that the statement recorded by the aforesaid witness was done in accordance with law. Arguments having been heard on 11.11.2024, the Judgment was delivered on 25.11.2024.

The informant, who was serving as a Counselor at Hermon Children's Home, Durtlang, deposed as PW-1. She deposed that on 25.09.2023, Childline had placed two children, namely the victim girl and her younger brother, in their home and, as requested by Childline, she took the CWC along with a Childline Helper on 26.09.2023. The CWC had asked the PW-1 to take the victim to the Police Station to file a report. She deposed that she was told that the elder brother of X had committed sexual assault upon her. They had gone to the All Women Police Station, Aizawl and the FIR had been lodged by her as per information received by her. She deposed that the parents of the accused and the victim had separated and both of them had remarried. She deposed that the accused was married and was living in his own house with his wife and child and that the victim had been asked by her father to stay with the accused and continue her studies. She deposed that the victim was taken to the Civil Hospital, Aizawl, for medical examination after the case had been filed. As the victim did not have age proof, she was taken to a Radiologist to determine her age based on radiological findings. The report of the medical examination was given to the Police Officer. On 27.09.2023, the victim was brought to the District Court at Aizawl, where a Judicial Magistrate recorded her statement.

During cross-examination, she stated that she had received the information regarding the assault from her colleagues at Hermon Children’s Home and the facts about the sexual assault in the FIR had been recited as per information given to her by the victim.

PW-2 was the victim, who stated that she was 12 years old at the time of the trial and that she was born on 06.02.2012. She deposed that she was around six years old when her parents had separated, and after her parents' separation, she was living with her father. She had six brothers and sisters, and she was the second youngest amongst the siblings. Both her parents had remarried, and her mother lived in Aizawl, whereas her father lived in Bilkhawthlir. She was reading in Class-IV at that time of deposing before the learned Trial Court. She stated that in February 2023, her father had asked her younger brother and herself to live with their eldest brother to continue her schooling from his house. The accused was married and had a child. She and her younger brother had joined the school at Durtlang.

She deposed that on 27.08.2023, when she was with her younger brother in the house, her sister-in-law got upset with her elder brother because he was drunk and she had gone away to her friend's house. The next morning, her elder brother asked her younger brother to go and search for her sister-in-law and asked the victim to cut brinjals. While she was cooking, the accused pulled her to the bedroom, put her on the bed, punched and slapped her. He disrobed her and raped her by inserting his private part into hers. Due to the pain, she had covered her face with a pillow. She shouted, but he punched her and beat her. Later, he had made her wash the bed-sheet which was stained with blood. Her brother had threatened her that if she told anybody about the incident, he would beat her again. She suffered pain in her private parts for three or four days. On 03.09.2023, when her sister-in-law had gone somewhere, her brother caught her and committed oral sex upon her in the kitchen after shutting the door. He had tried to rape her again, but by that time her younger brother had arrived, and her elder brother had let her go.

On 20.09.2023, she went to school and told her friend about what her brother had done to her, and she also told her friend that when she was six years old, the accused had tried to have sex with her. However, due to the presence of their other siblings, he could not complete his act. Her friend told the school Headmistress about the assaults, and the Headmistress came to her classroom when nobody else was present and asked her about the matter. The same day, the Headmistress informed Child Line, and representatives from Child Line also counseled her. She told them about the assault, and she, along with her brother, were taken to a Children’s Home.

The next day, she was taken to the CWC and to the Police Station. At the Police Station, the FIR was filed by a Counselor of the Children’s Home. She had to undergo a medical examination, and she also went to the Court, where her statements were recorded. During her cross-examination, she reiterated that she was 12 years old at that time and that she went to a Primary School. She stated that she started to live with her elder brother from February 2023 and that sometimes, the elder brother would be kind to her. She stated that her brother and her sister-in-law were not divorced on 28.08.2023, when the first sexual assault happened. She was never sexually assaulted by any other person prior to the incident. She stated that the first person she spoke to about the assault was her friend on 20.09.2023. She denied that she had alleged the assaults since her brother shouted at her.

The Headmistress of the Primary School, in which the victim had studied, deposed as PW-3 and stated that the victim was a student of the School since 2023. On 20.09.2023, when they were having co-curricular activities during school hours, the friend of the victim came to her and told her about the sexual assault upon the victim. She met the victim and asked her to tell her everything clearly, and the victim told her that her elder brother used to assault her sexually. The victim had also told her that her sister-in-law had left the house and her brother had asked her younger brother to search for his wife. When her younger brother was away, her elder brother raped her, and he also forced oral sex upon her. This witness had informed Child Line by telephone, and two persons from CWC came to their School. The CWC kept the victim and her brother as they were scared to go home, believing that their elder brother would beat them. The Police had recorded the statement of this witness after the case was lodged. In her cross-examination, she submitted that she was still working as the Headmistress of the School and she was conversant with the academic performance of the victim. She stated that the information was given to her by the friend of the victim in her sole presence and apart from her teachers and friend, nobody knew about the assault of the victim.

The friend to whom the victim had confided was thereafter examined as PW-4. This witness stated that she was reading in Class-IV in a Primary School, where the victim was her classmate, and they were friends. Both of them had gone to School on 20.09.2023, and when they were cleaning the School and chatting, the victim looked very sad, and on her enquiry, she told the witness about the sexual assault upon her by her elder brother with whom she was staying. The victim had told her that when she was six or seven years old, the elder brother had tried to have sex with the victim. When she came to live with her elder brother, he had sex with her and had also forced oral sex upon her. The victim had told the witness that her elder brother used to beat her and her younger brother. The witness had told the Headmistress what the victim had told her. The victim had come to the School the following day, but thereafter, she did not continue at School. In her cross-examination, she stated that she had never visited the victim’s house, nor did she see it. However, the victim used to come to their house. She had gone by herself to the Headmistress and told her what the victim had confided in her, and though other teachers were present, she had spoken only to the Headmistress.

The Medical Officer, who had conducted the medical examination on the victim, was deposed as PW-6. She was working as a Gynecologist at Civil Hospital, Aizawl from 2016. She deposed that she was on duty at the hospital on 26.09.2023, wherein she received a requisition from the All Women Police Station, Aizawl to conduct a medical examination on the victim in a case of alleged sexual assault. The victim was brought to the hospital by PW-1, who gave her consent for the medical examination. On her inquiry, the victim had told her that the accused had committed sexual assault upon her on 28.08.2023 and had also previously assaulted her sexually when she was six years old. The victim had washed and changed her clothes before she came for the medical examination. On examination, she found the victim to be physically and mentally normal, and there were no external marks of violence on her body. Genital examination did not show any seminal stains, bruising or laceration, but there was an old rupture on her hymen. During cross-examination, she stated that there was a long delay between the alleged incident and the medical examination.

The Medical Officer, who examined the accused, deposed as PW-7. This witness deposed that from the full development of the sexual organs, it would be possible for the accused to perform sex normally. His physical and mental health were normal at the time of examination. The examination was conducted in the presence of the staff nurse. During cross-examination, he admitted that it would not be possible to state whether or not the accused actually engaged in sexual activity.

The Medical Officer, who had opined on the age of the victim based on radiological tests, was examined as PW-8. This witness deposed that from X-ray and physical examination, the age of the victim was determined to be 11 to 12 years. This witness was not cross-examined, because the learned counsel for the defense had remained absent and did not appear, despite being informed through the Court.

The Investigating Officer was thereafter examined as PW-9. She deposed the circumstances under which the FIR had been lodged on 26.10.2003, when a Counselor of a Children’s Home filed the FIR. The informant brought the victim. She narrated the allegations of the FIR. She deposed that the case was registered under Section 6 of the POCSO Act, 2012, r/w Section 376 ‘AB’ I.P.C and that the investigation was endorsed to her by the Officer-in-Charge. She had examined the complainant and the witnesses, including the victim and the victim's friend. She had visited the place of occurrence and had drawn a sketch map. She had sent the victim for determination of her age on the basis of medical evidence, as she was not in possession of a Birth Certificate. She deposed that the report of the medical age determination showed that the victim was between 11 and 12 years old and another medical examination revealed that the hymen of the victim had an old rupture. The victim had been sent to the Court, where her judicial statement was recorded. The accused was arrested on 26.09.2023 and sent for medical examination. She had submitted the Charge-sheet under Section 6 of the POCSO Act r/w Section 376 ‘AB’ I.P.C, since she found a prima facie case against the accused.

During her cross-examination, she stated that she did not collect any material to show that the victim had suffered bleeding since the victim told her that she had washed the clothes and other material which had been soiled with blood. She stated that the house in which the offense had happened was isolated and very small, and the only partition available was a curtain. She could not examine any witnesses from the area apart from the victim because the wife of the accused was away and the children and their children were also not present at that time when the offense took place. She stated that she did not see any sign of injury on the victim and there were no eyewitnesses in the instant case.

The statement of the accused under Section 313 of the Cr.PC was recorded on 05.04.2024 in a language that he understood. In his statement, he admitted that the victim and her younger brother were residing with him since February 2023. He denied having sexually assaulted his sister. He stated that they used to play husband and wife without removing their clothes and without having sex. He wanted to adduce defense evidence. It is seen from the records that the trial had been adjourned on 05.04.2024, 18.04.2024, 29.04.2024, 02.05.2024, 16.05.2024, 30.05.2024, 13.06.2024, 20.06.2024, 18.07.2024, 05.08.2024, 19.08.2024 and on 29.08.2024 for allowing the defense to submit a list of defense witnesses and for defense evidence. However, on 09.09.2024, the defense counsel submitted that the defense would not lead evidence and it was requested that the defense be closed. Accordingly, the accused did not lead any evidence in the case.

Submissions in the Appeal.

Mr. C. Lalfakzuala, learned counsel for the appellant, has submitted that the learned Trial Court had committed grave error when the learned Trial Court did not venture to make any assessment of the understanding and competency of the minor victims to make statements before the learned Trial Court. The learned counsel for the appellant has submitted that it was incumbent upon the learned Trial Court to ask preliminary questions to the minor victims to assess whether they were capable of deposing in evidence.

The learned counsel had submitted that in order to determine the competency of the child witness, a Judge presiding over a Trial Court has to initially form an opinion and to assist such forming of an opinion, it would be required of the Judge to test the capacity of the child witness. Such competency of the child witness is to be ascertained by questioning the child to find out the capability to understand the occurrence witnessed and to speak the truth before the Court. He has submitted that though in a criminal proceeding, any person of any age is competent to give evidence, such person has to be able to understand the questions put as a witness and give such answers to the questions that can be understood. A child of tender age can be allowed to testify only if she has the intellectual capacity to understand questions and give rational answers thereto. A child would become incompetent when the Court considers the child unable to understand the questions and answer them in a coherent and comprehensible manner.

The learned counsel had submitted that in the present case, it would be obvious that the learned Trial Court did not need to make any attempt to determine the competency of the minor victim. Therefore, the acceptance of the evidence of the minor victims by the learned Trial Court is an aberration of law and settled principles of a child. Therefore, the impugned Judgment, convicting the accused, deserves interference from this Court. The learned counsel for the appellant has taken his submissions further by drawing attention of this Court to the statement of the minor victim recorded under Section 164 to submit that the victim had before the learned Judicial Magistrate stated that she had been assaulted on 26.09.2023 whereas in all her other statements, including the ones made before the learned Trial Court and the statement made before the Investigating Authority under Section 161 Cr.PC, she had not given any statement to the effect that she was assaulted on the day when the F.I.R had been lodged, i.e. on 26.09.2023.

The learned counsel for the appellant had submitted that the failure to confirm the competence of the victim by the learned Trial Court, coupled with the variations and discrepancies in her evidence, would strike at the root of the case of the prosecution. The learned counsel for the appellant had submitted that the appellant had been denied an opportunity of defending himself properly and, in any view of the matter, the conviction of the appellant deserves interference from this Court.

The learned counsel for the appellant has submitted that it is settled law that the age of a minor victim is required to be proved in accordance with law, namely by first referring to the matriculation or equivalent certificate, if available, in absence whereof, the date of birth certified from the school records and in absence whereof, the birth certificate given by a corporation or a municipal authority and only in the absence of the above, a medical opinion would be relied upon to determine the age of a juvenile or a child. He has submitted that the minor child had deposed that she was attending a primary school. Still, the prosecution had made no attempts to exhibit any documents from the said school and had simply relied upon medical opinion. Accordingly, he has submitted that the age of the minor victim had not been proved during the trial conclusively.

On a pointed query by the Court, the learned counsel for the appellant submitted that the age of the minor victim had not been disputed during the trial.

Mrs. Linda L. Fambawl, learned Public Prosecutor, has submitted that it is not necessary in all cases that a Trial Court has to put questions to minor victims to assess their competency to give evidence in a trial. The learned Public Prosecutor has submitted that it is only when the learned Trial Court finds that the competency of the minor victim is doubtful that it has to confirm the competency by asking questions and thereafter determine whether a particular witness is competent to give evidence. The learned Public Prosecutor has submitted that the evidence of the minor victim and her friend would reveal that they understood the questions being put to them in cross-examination and they had already coherently and lucidly described the events in their examination-in-chief.

The learned Public Prosecutor has submitted that there is nothing in the record to show that the minor victim or her friend was in any manner not competent to depose about the incident which was an integral part of the evidence of the prosecution. The learned Public Prosecutor has submitted that in that view of the matter, there is no fallacy in the judgment of the learned Trial Court in convicting the appellant on the basis of the statement of the minor victim. The learned Public Prosecutor has submitted that it is a settled position that every minor discrepancy or variation in the statements of witnesses regarding a particular assault may not have the potential to render the evidence unreliable and even in the presence of minor variations, the evidence of a minor child can be of what is known in law to be of “sterling quality”. The learned Public Prosecutor has submitted that the present appeal does not deserve any further consideration from this Court and the same is liable to be dismissed without any interference.

The learned PP has submitted that the age of the victim has been opined to be around 10 to 11 years by the medical officer on the basis of radiological tests. Going by the settled position and giving benefit to the accused, the victim can be taken to be more than 12 years, i.e., 12 + 2 = 14 years and even in that case, the victim remains a certified minor at the time of the incident. She has submitted that therefore, the failure of the prosecution to bring on record an age certificate from either the School or the Municipal Authorities, or any other Authorities who issued such certificate, would not have any bearing on this case.

Mr. Jordan Rohmingthanga, appearing as the Legal Aid Counsel to defend the interest of the minor victim, has submitted that the discrepancies sought to be relied upon by the appellant regarding the date of incident stated by the minor victim in her statement recorded under Section 164 Cr.PC are minor discrepancies. He has submitted that, in fact, 26.09.2023 was the date on which the F.I.R had been lodged, though the minor victim has stated that the incident had occurred on that day. He has submitted that throughout the Trial proceedings, the victim had maintained a stand that in the morning hours of 28.08.2023, when her elder brother had sent away her younger brother to look for his wife, the elder brother had committed raped upon the victim. The incident of 03.09.2023 had also been consistently explained by the minor victim even on the face of cross-examination conducted on behalf of the defense. He has submitted that the deposition of the victim being consistent throughout, there can be no denial that the victim, who was a minor, had been subjected to penetrative sexual assault by the accused at his own home. At the same time, he was the caretaker of the minor victim. He was in a position of authority over the minor victim. He has submitted that the accused is a relative of the child through blood, being her own elder brother. He has submitted that therefore, there is no illegality or error committed by the learned Trial Court in convicting the accused under section 6 of the POCSO Act, as well as under section 376 ‘AB’ of the IPC. He has prayed that the appeal be dismissed.

The learned Legal Aid Counsel submitted that there is no bar in law to take into account the approximate age determined on the basis of medical examination. He has submitted that the victim is the sister of the accused and her age was not put to question during the trial.

We have heard the learned counsels for the parties, and we have considered the materials available on record.

In Dattu Ramrao Sakhare VS State of Maharashtra, reported in (1997) 5 SCC 341, the Apex Court held that a child witness, if found competent to depose to the facts and reliable, such evidence could be the basis of conviction. It was further held that the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. In P. Ramesh vs State, reported in 2019 20 SCC 593, the Apex Court had referred, with affirmation, to the decision of the US Supreme Court in Wheeler vs. United States, reported in 1895 SCC Online US SC 220, wherein it was held that the decision regarding the competency of a child witness rests primarily with the Trial Judge, who sees the proposed witness, notices his manner, his apparent possession or otherwise of intelligence. The decision of the Trial Judge is not required to be disturbed unless it is clear, from the materials available on record, that the decision was erroneous.

In Ratansinh Dalsukhbhai Nayak VS State of Gujarat, (2004) 1 SCC 64, the Apex Court held as follows:

In Santosh Prasad @ Santosh Kumar, reported in (2020) 3 SCC 443, the Supreme Court has held that conviction can be based solely on the evidence of the victim which should be reliable and trustworthy.

In Raju vs. State of M.P. , reported in (2008) 15 SCC 133 , it has been held that insofar as allegations of rape are concerned, the evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable, but it can never be presumed that the statement should be, without exception be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely.

In Rai Sandeep vs. State (NCT of Delhi), reported in (2012) 8 SCC 21 , the Supreme Court explained “sterling witness” as follows :

We have carefully gone through the deposition of the minor victim and her friend, who was also a minor, and we have also carefully examined the reasoning and conclusion arrived at by the learned Trial Court with regard to the reliability of the evidence of the minor witnesses and we are of the considered opinion that the observations of the Apex Court in Ratansinh Dalsukhbhai (supra) quoted herein above squarely apply to the present case. We do not find any reason to disbelieve the deposition of the minor victim when the same has withstood the test of cross-examination and has remained consistent and unaltered. We do not find any material contradictions in the deposition of the minor victim vis-à-vis her statement made under Section 164 Cr.P.C, except a minor variation with regard to the date of the incident. This variation has been adequately dealt with by the learned legal aid counsel. It is an admitted fact that the accused is the elder brother of the minor victim and she had made the complaint against him in the absence of their parents, who have been stated to be divorced and staying separately. No enmity between the accused and the minor has been brought out in the Trial. In the circumstances, the first ground of appeal pressed by the learned amicus for the appellant assailing the reliability of the evidence of the minor victim is answered in the negative, since we find the evidence to be reliable, sans any material contradictions or variations.

The question that next requires to be addressed is as to whether the age of the victim had been adequately determined, since such determination was based on the opinion of a doctor who had in turn relied on radiological tests conducted on the victim.

The Hon’ble Supreme Court in the case of P. Yuvaprakash -Versus- State, reported in (2023) AIR SC 3525, has held as follows;

Section 94 of the Juvenile Justice(Care and Protection of Children) Act, 2015 reads as follows:

In the present case, the defence had not disputed the age of the victim during the Trial. The accused is admittedly the brother of the victim. There is no rebuttal by the accused to the evidence led by the prosecution that the minor victim was staying with him and that she was studying in a primary school. The medical evidence indicated the victim to be aged around 11 to 12 years, and even giving benefit to the accused by adding two years to the medically determined age, the victim could not have been beyond 14 years of age. The accused was the elder brother, related by blood, and therefore, his act was within the purview of Section 5 of the POCSO Act, 2012, punishable under Section 6 of the Act. In the above view of the matter, the second limb of the appellant's argument also fails.

Consequently, the present appeal fails and is dismissed.

Registry to return the records of the learned Trial Court along with a copy of this order.

The learned Amicus and the Learned Legal Aid Counsel shall be paid their fees as per norms.